IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MUSOMA

AT MUSOMA

MISCELLANEOUS LAND CASE APPEAL NO 42 OF 2019

(Arising from the decision of the District Land and Housing Tribunal in Appeal No

189/2018 and Originating in the Mwisenge Ward Tribunal Land Application No 139

Of 2017)

DEVOTHA PETER ...........................................APPELLANT

Versus

ATHUMAN MTUNDU.....................................RESPONDENTS

RULING

21st & 25th February, 2020

Kahyoza, J.

Devotha Peter and Athuman Mtundu are neighbours owning adjacent

pierces of land. Both pierces of land are surveyed. Ms. Devotha Peter

sued Mr. Athuman Mtundu claiming that he crossed the border and

planted trees on the land belonging to her. She sued Mr. Athuman in

the Ward tribunal praying Mr. Athuman to be ordered to uproot the

trees he planted into her plot and to clear the border. She won the case.

Mr. Athuman aggrieved by that decision he appealed to the District

Land and Housing Tribunal (DLHT). The Chairman of the DLHT heard

the appeal with aid of assessors as required by the law. At the

conclusion of the hearing the Chairman fixed a date of judgment

without requesting the assessors to give opinion. The chairman did not

fix a date for the assessors to read their written opinion in the presence

of the parties. The record of DLHT contains written opinion of the

assessors which the Chairman considered while composing the

judgement.

The DLHT delivered its judgment where the Devotha Peter who was the

winner before the ward tribunal lost the appeal. The DLHT ordered the

Devotha Peter to compensate the Mr. Athuman Mtundu for the portion

of land measuring 31.1 sq.m. Mr. Athumani never prayed for

compensation.

The issues for determination are:-

1. whether the DLHT heard the appeal with the aid of assessors;

and

2. was the DLHT justified to order compensation which was not

prayed for?

Devotha Peter, the appellant lodged four grounds of appeal to this Court

paying for an order to quash the decision of the DLHT and restore the

decision of the ward tribunal. She also prayed to be declared a rightful

owner of the suit premises. I found out before hearing the appeal that

there were issues that should be determined before the appellant can

be heard on the grounds of appeal. On the date the appeal came for

hearing, I called upon the parties to address the Court on the above

2

issues. The appellant submitted that she never heard the opinion of the

assessors.

The respondent contended that he heard the chairman delivering the

ruling and that he emerged the winner. He contended that the appellant

before this court, was ordered to pay him compensation.

I will commence with the first issue whether the DLHT heard the

appeal with the aid of assessors. The Chairman of the DLHT is required

to seat with not less than two assessors as provided with section 23 (1)

of the Land Disputes Courts Act, [Cap 216 R.E. 2002] (Cap. 216.

Section 23 provides as follows: -

23.(1) The District Land and Housing Tribunal established under

section 22 shail be composed of one Chairman and not iess than

two assessors.

(2) The District Land and Housing Tribunal shall be duly

constituted when held by a Chairman and two assessors who shall

be required to give out their opinion before the Chairman reaches

the judgement

(3 ) .....

It is on record that chairman of the DLHT sat with two assessors

Mr. Mare S. Matiko and Ms. Perucy Milambo. The record further shows

that each assessor composed and filed his opinion on a different date.

Mr Matiko filed his opinion on the 26th June 2019 and Ms.

Milambo did so on the 27th June, 2019. It is very obvious that on

the dates the assessors filed their opinion with the DLHT none of the

parties was present. Thus, the opinion of the assessors was not read to

the parties. The law requires the assessors to give opinion before the

DLHT in writing as provided by regulation 19(2) of the Land Disputes

Courts Act (District Land and Housing Tribunal) Regulations,

2002 G.N. 174/2003. The regulation states that:-

"Notwithstanding sub-regulation (1) the chairman shall,

before making his judgment, require every assessor present

at the conclusion of the of the hearing to give his opinion in

writing and the assessor may give his opinion in Kishwahili."

The DLHT heard the parties on appeal, visited the locus in quo

and fixed a judgment date without indicating the date it was to take

down the opinion of the assessors. The judgment was fixed on the

15th July, 2019. On that the DLHT did not deliver its judgment. The

coram shows that all parties were present hope for judgment. The

court ordered assessors give their opinion on the 30th July, 2019.

"Date: 15/7/2019

Coram: Kitungulu E - Chairman

TLASS

Appellant: Present

Respondent: Present

TIC: Pude

Order: Assessors opinions 30/7/2019

Sgd: Kitunga. E.

15/7/2019"

It is obvious from the record that on the 30th July, 2019, the tribunal

assessors did not give opinion as they were not before the DLHT and

the record is silent on what took place on that date.

It is a settled position of the law as stated by the Court of Appeal

in Tubone Mwambeta v. Mbeya City Council, Civil Appeal

No. 287 of 2017 (unreported) that it was very important for the

Chairman to call upon the assessors to give their opinion in

writing and read the same to the parties. The Court of Appeal

stated as follows: -

"In view of the settled position of the law where the trial

has to be conducted with the aid of the assessors/ ... they

must actively and effectively participate in the proceedings so

as to make meaningful their role of giving their opinion before

the judgment is composed ... since Regulation 19 (2) of the

Regulations requires every assessor present at the trial at the

conclusion of the hearing to give his opinion in writing/ such

opinion must be availed in the presence of the

parties so as to enable them to know the nature of

the opinion and whether or not such opinion has been

considered by the Chairman in the finai verdict/'

In yet another case of Edina Adam Kibona V Absolom Swebe

CIVIL APPEAL NO. 286 OF 2017 CAT (Unreported) the Court

recapitulated its position that failure to call upon the assessors to give

opinion and to let the parties know the contents of the assessors'

opinion was a ruinous defect. The Court of Appeal stated:-

"We wish to recap at this stage that the trials before the District

Land and Housing Tribunal, as a matter of iaw, assessors must

fully participate and at the conclusion of evidence> it terms of

Regulation 19 (2) of the Regulations, the Chairman of the

District Land and Housing Tribunal must require every one of

them to give his opinion in writing. I t may be in

KiswahilL That opinion must be in the record and

must be read to the parties before the judgment is

composed.

For the avoidance of doubt, we are aware that in the instant

case the original record has the opinion of assessors in writing

which the Chairman of the District Land and Housing Tribunal

purports to refer to them in his judgment. However> in view of

the fact that the record does not show that the assessors were

required to give them; we fail to understand how and at what

stage they found their way in the court record. And in further

view of the fact that they were not read in the presence of

the parties before the judgment was composedthe same have

no useful purpose."

For that reason, the proceedings of the DLHT was fatally defective.

I will now answer the second issue whether the DLHT was justified to

order compensation which was not prayed for?

It has been shown above that the appellant sued the respondent,

Athuman Mtundu for an order that the said Athuman Mtundu be ordered

to uproot trees in the appellant's plot and clear the border. The

respondent, Athuman did not file a counter claim before the ward

tribunal. He lost the dispute and appealed to the DLHT. The

respondent Athuman Mtundu who was the appellant before the DLHT

raised five grounds of appeal and prayed the DLHT to quash the

proceedings and set aside the decision of the ward tribunal, prayed to

be declared the owner of the land in dispute and also prayed for costs

and any other relief the DLHT deemed fit to grant. The said

Athuman Mtundi never prayed for compensation. The DLHT

heard the parties, visited the locus in quo and delivered its judgment. It

awarded compensation to Mr. Athuman Mtundu which he did not pray

for and without stating the amount. It started-

"That found it is my firm view that the appellant be

compensated by the respondent for his portion of land

measuring 31.1 sq. m. so as he surrenders the same to the

respondent"

The DLHT awarded compensation to the Mr. Athuman Mtundu which he

never prayed for. This was against the clear position of the law that

parties are bound by their pleadings and that the court can only

grant that which is prayed for. In Gabdy v Gaspair [1965] EACA

139 the Court held that unless the pleadings are amended, the parties

must be confined to their pleadings otherwise to decide against a party

on matters which do not come against the issues arising from the

dispute as pleaded clearly amounts to an error on the face of record. A

similar position was taken in the Supreme Court of India in Bharat

Amratla! Khotari v. Dosukhan s. Sindhi & Others AIR 2010 SC.

475, when it held that:

"Though the Court has very wide discretion in granting relief,

the court however> cannot; ignoring and keeping aside the

norms and principles governing grant of relief, grant a relief not

even prayed for by the petitioner."

Furthermore, the fact the issue of compensation was not one of the

grounds of appeal and the parties were not called upon to address the

DLHT on the issue of compensation the appellant Devotha Peter

was condemned unheard. The Court of Appeal nullified the

proceedings and set aside the judgment of the High Court in Scan Tan

Tours Ltd Vs The Registered Trustees of the Catholic Diocese of

Mbulu Civil Appeal No.78/2012 (unreported) where it found that the

trial Judge had introduced a new issue "Suo motto" and decided on it

without giving an opportunity to the parties to address the court on the

same. The Court stated: -

" We asked ourselves whether the parties, especially the appellant,

were denied the right to be heard (audi alteram partem) thereby

contravening the rules of natural justice. We insisted that cases

must be decided on the issues on record and where new issues

not founded on the pleadings are raised, the parties should be

given the opportunity to address the Court."

8

The DLHT ought to have called the parties to address it on the issue

whether the Mr. Athuman Mtundu was entitled for compensation or not.

Even if it was true that the Land in question was previous owned by Mr.

Athuman and acquired by Government or local government, surveyed

and allocated to the Devotha or her predecessor in title. Mr. Athumani

was required to claim for compensation from the Government or the

local government authority. Regulation 13(1) of the The Land

(Assessment of the Value of Land for Compensation)

Regulations, G.N. No. 78/2001 provides that even the interest for

impromptu payment has also to be paid by the Government or local

government. It states-

"13 (1) The interest upon any compensation shaii be paid by the

Government or the iocal government authority only where there is

no prompt payment of compensation made.

(2) For the purpose of computing interest payabie upon

compensation "prompt payment of compensation" means payment

of compensation within six months after the subject land has been

acquired or revoked"

A person to whom land is allocated by relevant has no duty to

compensate directly the land owner prior to the acquisition or

revocation.

For the above reasons, I find the order for compensation not justified. It

is a nullity.

For the reasons stated above, I nullify the proceedings and set aside

9

the judgment of the District Land and Housing Tribunal. I direct the

appeal to be heard afresh before another Chairman and with a new set

of assessors.

Each party shall bear its own costs as no party is to blame but the

District Land and Housing Tribunal.

It is ordered accordingly.A

3. R. Kahyoza

JUDGE

25/2/2020

Court: Ruling delivered in the presence of Applicant/Appellant and the

respondent, B/C Charles Mgeta Present.

J. R. Kahyoza, J

25/2/2020

Court: Right of Appeal explained.

J. R. Kahyoza

JUDGE

25/2/202

10